Date: Fri 27-Sep-1996

Publication: Bee

Author: ANDYG

Quick Words:

P&Z-lawsuit-Whispering-Pines

Full Text:

Developer Sues P&Z Over Whispering Pines Action

B Y A NDREW G OROSKO

PSD Partnership, a land development company, has sued the Planning and Zoning

Commission (P&Z) because the commission approved only 13 of the 16 building

lots requested by PSD for its Whispering Pines residential subdivision in

Sandy Hook.

In the lawsuit filed Monday in Danbury Superior Court, PSD seeks to have a

judge approve construction of a 16-lot development.

PSD Partnership consists of Thomas Maguire of Newtown; Larry Edwards of

Easton; Robert and Bruce Biscoe, both of Hawleyville; and Dave Elliot of

Southbury.

The Whispering Pines subdivision has been one of the most controversial

residential development projects in recent memory. The 26-acre site lies

within an established neighborhood near Pine Street, Cherry Street, and

Narragansett Trail in Sandy Hook.

When initially proposed as a 19-lot development in April, residents of the

neighborhood, under the banner of the Rocky Glen Area Association, organized

and loudly opposed the project. They said new development there would: damage

the environment by the removal of an excessive amount of sand and gravel from

the property; overcrowd the area; jeopardize already-unreliable water

supplies; worsen traffic hazards; and overburden the public schools, among

other complaints.

P&Z members heeded the residents' concerns and rejected the 19-lot development

project in late April, citing concerns over drainage, sedimentation, erosion,

excavation and grading.

After PSD returned to the P&Z with a scaled-down proposal involving 16 lots,

the P&Z conducted public hearings on the project in June and July. The

developers said the 16-lot proposal addressed the concerns which were raised

by the P&Z in its rejection of the 19-lot plan.

Again, residents near the development site complained loudly.

On September 5, in a 4-to-1 vote, P&Z members reduced the 16-lot project to a

project containing 13 lots. P&Z members also placed numerous conditions on

their approval of the scaled-down project.

Attorney Robert Hall, representing PSD, states in the lawsuit the P&Z's

approval of Whispering Pines requires the developers to submit revised

subdivision plans for future P&Z approval, but doesn't explain the criteria by

which the three building lots should be eliminated from those plans "other

than the future discretion of the commission". Mr Hall says that state law

doesn't allow the P&Z to impose such a condition of approval.

PSD claims that in attaching conditions to the Whispering Pines approval, the

P&Z acted illegally, arbitrarily, and in abuse of the discretion vested in it.

In the lawsuit, the attorney states

Also, the attorney claims: the P&Z doesn't have the legal right to approve

what landscaping work will be done on the property or approve what steps will

be taken to ensure public safety during subdivision road construction.

Mr Hall argues that the three lots that the P&Z required to be eliminated from

the subdivision met the town's subdivision regulations and all other

applicable regulations.

Also, he claims the P&Z's ban on any future re-subdivision of land within the

subdivision isn't allowed by state law or the town's subdivision regulations.

Conditional Approval

In light of the many concerns raised by neighborhood residents, in approving

the 16-lot version of Whispering Pines on September 5, the P&Z placed numerous

controls and conditions on the approval. Among those conditions:

PSD must eliminate Lots 10, 11, and 12 as building lots and also must relocate

the accessway to the open space land on the parcel.

PSD must not resubdivide any of the 13 lots.

The applicants must submit a revised estimate of the amount of earth material

to be removed from the land in light of fewer building lots on the property.

The developers must hire a person to monitor and report on the amount of earth

materials removed from the property.

PSD must submit a landscaping plan for the property for P&Z review indicating

what visual buffering will be provided for five lots which abut nearby

Buttonball Drive properties.

The developers must submit a plan showing what large trees will be cut and how

those trees will be replaced. Each large tree which is removed must be

replaced by a new tree.

PSD must submit a plan explaining what steps it will take to ensure public

safety on the property during new road construction.

The road bonding for the project shall be increased.

"The commission is not usually in the position of significantly reshaping a

subdivision application. However, pursuant to our subdivision regulations, we

can approve, modify or disapprove an application...This property does have the

potential for some development, although not what was proposed by the

applicant," said Stephen Adams, a former P&Z member who was P&Z chairman at

the September 5 session.

However, the commission's new vice chairman John DeFilippe said at the

September 5 meeting that P&Z members aren't in a technical position to say

which building lots should be deleted from a proposal. The biggest problem

with the 16-lot proposal is the removal of 38,000 cubic yards of earth

materials from the site as part of subdivision construction, he said. In

arguing to deny the application, Mr DeFilippe said he was "uncomfortable" with

the developer's application and also with Mr Adams' changes to it.

The town is scheduled to appear October 15 in Danbury Superior Court to answer

the claims raised in the lawsuit.